No. 35400 (Amendment): Rule R850-8. Adjudicative Proceedings

(Amendment)

DAR File No.: 35400
Filed: 11/01/2011 10:45:20 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

During the 2011 General Session, amendments were made to the Trust Lands Management Act specifying that agency decisions to sell, exchange, or lease specific property would not be subject to administrative appeal. Third parties seeking to challenge these decisions would need to seek injunctive relief in the court system rather than filing an appeal with the Trust Lands Administration's Board of Trustees. As a result of these legislative amendments, the agency's administrative rule for adjudicative proceedings needs to be amended to reflect the statutory change. A few clarifications are also being made to better address the agency's practices.

Summary of the rule or change:

Changes made in Subsections R850-8-300(1) and (3) clarify that final agency actions must directly determine the legal rights of a person before they are appealable and add a definition for the Director's Minutes, which is the recordkeeping document issued weekly by the agency to report administrative actions. Changes made in Subsection R850-8-300(4) provide that the Notice of Cancellation issued by the agency's business office to each entity who has not made a required contractual payment is the final agency action rather than the later entry on the Director's Minutes; and agency decisions to sell, exchange, or lease specific property are not subject to administrative appeal. Changes to Section R850-8-900 eliminate the requirement that Notices of Cancellation be physically signed since they are automatically generated by the computer; clarify that the agency is not required to notify lessees or third parties by mail for routine items ordinarily noted on the Director's Agenda; and, those situations where written mailed notices will be required. Changes to Section R850-8-1000 clarify that the right of administrative review is limited to persons who are parties to the agency contract, or whose legal rights have been directly determined by the final agency action, and eliminates the conflict between the 14-day period requirement for administrative appeals to be brought to the board and the 30-day cure period provided in many of the contracts.

State statutory or constitutional authorization for this rule:

• Section 53C-1-304
• Subsection 53C-1-204(3)
• Subsection 53C-1-204(1)(c)

Anticipated cost or savings to:

the state budget:

It is not anticipated that there will be any additional cost or savings to the state budget as a result of these changes because they mainly clarify and bring the rule in line with processes that have been in place for some time. Also, the agency hasn't received any challenges by third parties to agency administrative actions for over a year or more. The fact that agency decisions to sell, exchange, or lease specific property are not subject to administrative appeal could, potentially, save the agency the time and energy previously required to review and participate in these types of administrative appeals.

local governments:

It is not anticipated that there will be any additional cost or savings to local government. Unless the local government is party to a contract with the agency, or whose rights have been directly determined by the final agency action, they would not be seeking administrative review. If they were to seek administrative review, the costs would be the same as prior to these rule changes.

small businesses:

It is not anticipated that there will be any additional cost or savings to small businesses as a result of these rule changes. The changes are mostly for clarification purposes and do not require any additional effort or action on the part of the small businesses beyond what previously existed.

persons other than small businesses, businesses, or local governmental entities:

It is not anticipated that there will be any additional cost or savings to persons other than small businesses, businesses, or local government entities as a result of these rule changes. These changes are mostly for clarification purposes and do not require additional effort or action beyond what previously existed.

Compliance costs for affected persons:

It is not anticipated that there will be any compliance costs for affected persons as a result of these rule changes as they are basically for clarification purposes. The same procedures and practices are still in place for any agency action that is deemed to be in need of administrative review and the costs for participating in that review remain the same.

Comments by the department head on the fiscal impact the rule may have on businesses:

The proposed rule streamlines the adjudicative review process so that valuable time is not wasted on appeals to the Board of Trustees when judicial review is more appropriate

Kevin S. Carter, Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

School and Institutional Trust Lands
AdministrationRoom 500
675 E 500 S
SALT LAKE CITY, UT 84102-2818

Direct questions regarding this rule to:

• John Andrews at the above address, by phone at 801-538-5180, by FAX at 801-538-5118, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

12/15/2011

This rule may become effective on:

12/22/2011

Authorized by:

Kevin Carter, Director

RULE TEXT

R850. School and Institutional Trust Lands, Administration.

R850-8. Adjudicative Proceedings.

R850-8-300. Definitions.

1. Adjudicative proceeding - means a review by the board of a final [Trust Lands Administration]agency action that directly determines the legal rights, duties, [privileges, immunities,] or other legal interests of one or more identifiable persons.

2. Board - means School and Institutional Trust Lands Administration Board of Trustees. References to the board shall also apply to any hearing examiner appointed unless the context of rules requires otherwise.

3. Director's Minutes - means the weekly compendium of actions taken by the Director and posted on the agency's website to provide public notice for record keeping purposes.

[3]4. Final agency action - means a written determination by the Trust Lands Administration of the legal rights, duties, [privileges, immunities,] or other legal interests of one or more identifiable persons. The determination [shall]may be in any form deemed appropriate by the Trust Lands Administration, including but not limited to, a notation on the [d]Director's [m]Minutes, a narrative record of decision, a notice that an instrument will be canceled for nonpayment issued pursuant to R850-5-200(5), or a decision letter. Decisions by the director or the agency to sell, exchange, or lease specific real property are not subject to administrative review pursuant to Subsection 53C-1-304(2)(b), and therefore do not constitute final agency actions.

[4]5. Party - means the Trust Lands Administration or other person commencing an adjudicative proceeding, all respondents, all persons permitted by the board to intervene in the proceeding, and all persons authorized by statute or Trust Lands Administration rule to participate as parties in an adjudicative proceeding.

[5]6. Person - means an individual, group of individuals, partnership, corporation, association, political subdivision or its units, governmental subdivision or its units, public or private organization or entity of any character, or another agency.

[6]7. Petitioner - means a person who requests the initiation of any proceeding.

[7]8. Respondent - means a person against whom an adjudicative proceeding is initiated, or whose property interest is directly affected by a proceeding initiated by the board or by another person.

 

R850-8-900. Final Agency Action.

1. The final agency action shall be in writing .[ and shall include the date that it was mailed and] Except for a notice that an instrument will be canceled for nonpayment issued pursuant to R850-5-200(5), the final agency action shall be signed by the director or his designee.

[ 2. The Trust Lands Administration shall mail the final agency action to any other person who has a right to notice under statute or rule.

] 2. Nothing in this rule 850-8 shall require the agency to mail notice of routine administrative and record-keeping matters otherwise noted on the Director's Minutes to any person, including without limitation assignments, reinstatements, notifications of the expiration of any lease or instrument by its own terms, cancellations of instruments for nonpayment after a notice of cancellation issued pursuant to R850-5-200(5), voluntary relinquishments or amendments, approvals of range improvements or grazing permit renewals, or fee waivers.

3. Final agency actions requiring the payment of funds; providing notice pursuant to R850-5-200(5) that an instrument will be subject to cancellation unless payment of funds is made; exercising any discretionary right of the agency to readjust or otherwise modify an existing agreement; declaring any default under an existing agreement; declining or conditioning any assignment; making rule-based determinations where administrative review is provided by rule; or otherwise directly determining the legal rights or obligations of a person will be mailed to that person and any other person with a right to notice by statute, rule or contract.

 

R850-8-1000. Appeal of Final Agency Action.

1. The Trust Lands Administration may by rule specifically designate certain categories of Trust Lands Administration actions that are not subject to appeal.

2. Except where no appeal is available pursuant to statute or rule, an appeal may be initiated only by [any person]a party to a contract that is the subject of a final agency action, or whose legal interests are directly [affected]determined by the [Trust Lands Administration]final agency action. A written petition must be filed within 14 days of the mailing date of the final agency action requesting an adjudicative proceeding , unless a longer date is specified in writing in the final agency action or required by statute, rule, or contract. In the event an appeal is not filed in the [14 day]applicable time period, the final Trust Lands Administration action shall become unappealable. The petition for an adjudicative proceeding shall be filed according to the following requirements:

(a) the petition shall be filed at the office of the director pursuant to R850-8-800.

(b) the petition shall state:

i) all facts upon which the petition is based;

ii) any statute, rule, contract provision, or board policy which the final agency action is alleged to violate;

iii) the nature of the violation of the final agency action with the statute, rule, contractual provision or board policy, and the injury that is specific to the petitioner arising from the final agency action. If the injury identified by the petition is not peculiar to the petitioner as a result of the action, the board will decline to hear the appeal; and

iv) the relief requested.

3. Upon receipt of a petition, the director shall initially stay any further actions with respect to the matter for which the adjudicative proceeding is being sought by the petitioner. The board, in its discretion, may lift such suspension or condition the continuation of the stay upon filing of a surety, in an amount specified by the board, sufficient to protect the interests of the beneficiaries.

4. Upon receipt the director shall promptly mail the petition to the board.

5. When the date of mailing is at least ten days prior to a regularly scheduled board meeting, the board may consider the petition at that meeting. In the event that the date of mailing is within ten days of a regularly scheduled board meeting, the petition will be considered at the next succeeding board meeting.

6. In its initial consideration of any petition, the board may schedule the petition for hearing at a future date, make determinations concerning whether the adjudicative proceeding will be formal or informal, address procedural matters such as stays, discovery, etc., or hear the matter on the merits.

7. The board may decline to conduct adjudicative proceedings in response to a petition, in which case the petitioner shall be entitled to judicial review pursuant to Section 63G-4-402.

 

KEY: administrative procedures , public petitions, right of petition, adjudicative proceedings

Date of Enactment or Last Substantive Amendment: [November 19, 1996]December 22, 2011

Notice of Continuation: November 6, 2006

Authorizing, and Implemented or Interpreted Law: 53C-1-204(3); 53C-1-204(10)(c); 53C-1-304

 

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